The plea of self-defense cannot be split up and has to be accepted or rejected as a whole.

( 1 ) THE appellant has been convicted under Section 302 IPC and sentenced to undergo life imprisonment. He was charged and tried along with three others (since acquitted) for an offence punishable under Section 302/34 IPC, but convicted under Section 302 L. P. C. vide judgement dated 6-2-1985 passed by the Third Additional Sessions Judge, Ujjain in Sessions Trial No. 162 of 1985.

( 2 ) SHORT facts of the case are; that on 4-8-1984 around 7 p. m. , the appellant along with co-accused committed murder, of one gangaram. According to the prosecution case certain portion of pasture land in village Kukni was encroached upon by the accused. The villagers had, therefore, assembled on the otla of the temple around 12 a. m. to prepare a petition for removal of said encroachment. When Gangaram and Bhagirath, who are brothers, were signing the petition, the accused abused them and threatened them with dire consequences in case any one signed it. It was for this reason that Bhagirath, who was also the Sarpanch of village, did not sign the petition. Gangaram, however, signed it, which resulted in a quarrel between him and the accused. However, on an intervention by other villagers, the accused returned. On the same day, the villagers collectively signed a report, Ex. P-1 which was brought to the Police Station by Bhagirath and Gangaram. Bhagirath also lodged an oral report, Ex. P-14, at the Police Station. According to the case, the accused has also came to Mahidpur. In order to reach village Kukni from river Kshipra, it is required to be crossed. As it was a rainy season both brothers Gangaram and Bhagirath while returning to their village Kukni were crossing the river in a boat. The accused were also in the same boat, armed with Dhariya and Lathis. When the boat reached the opposite bank towards village Parvatkheda, the accused alighted from the boat and proceeded ahead. Bhagirath and Gangaram along with others were following them. No sooner Gangaram and Bhagirath crossed the steep that and reached the even ground, Gangaram was waylaid by the accused, who started assaulting him. Bhagirath rusher back to the Ghat crying for help, where he found that boat man Maqsoodali (PW-9) and Usman were present. He narrated them the incident. He again came back to scene of occurrence, but by that time the accused had run away. Gangaram died due to the injuries suffered by him. Bhagirath again came back a Mahidpur after crossing the river, where he lodged the First Information Report, Ex. P-2. Investigation proceeded on this report. The accused were arrested during the course of investigation and weapons were recovered at their instance. On completion of investigation, the accused were prosecuted for the above offence and as noted above, the appellant has been convicted under Section 302 I. P. C. and sentenced to life imprisonment hence this appeal.

( 3 ) SHRI Bhargava, learned counsel appearing for the appellant has raised the following points :-1. Prosecution evidence which has been disbelieved so far as the other co-accused since acquitted should not have been relied upon for convicting the appellant. 2. The plea of self-defence as taken by the appellant cannot be split-up either it should be accepted as a whole or rejected as a whole. 3. The appellant having been charged under Section 302/34 I. P. C. could not have been Legally convicted under Section 302 I. P. C. more so when there was no charge framed under this substantive head.

( 4 ) TAKING up the first point, there is no warrant for the proposition that evidence found to be unreliable in respect of some of the accused cannot be acted upon for convicting another accused even if it is found to be reliable against him who stands convicted on the basis of such evidence.

( 5 ) COUNSEL for the appellant referred to the evidence of Maqsoodali (PW-9) who had deposed that it was accused Mohan who was having a Dhariya and submitted that the appellant could not have assaulted with Dharia